Marine Bank v. Wright

46 Barb. 45 | N.Y. Sup. Ct. | 1866

By the Court, Sutherland, J.

The bill of lading, on its face, stated that the corn was shipped “ for and at the risk of whom it may concern.”

The bill of lading could be transferred to the plaintiff by delivery merely, without any indorsement or written assignment, so as to transfer the property in the corn which it represented, to the plaintiff, (Bank of Rochester v. Jones, 4 Comst, 497, 501. Allen v. Williams, 12 Pick. 297.)

The draft was discounted by the plaintiff before the corn came into the possession of the defendants, and before any bill of lading had been sent to them. It would seem to follow, if the finding of the referee on the question of fact whether the bill of lading was or was not transferred to the plaintiff, at the time of the discount, as collateral security for the payment of the draft, was authorized by the evidence, that the judgment should be affirmed.

[New York General Teem, April 2, 1866.

■ The referee found that the cargo of com was transferred to the plaintiff, and the bill of lading thereof delivered to the plaintiff, as stated in the complaint. The complaint alleged that the bill of lading was, at the time the draft was discounted, transferred to the plaintiff as collateral security for the payment of the draft. If this was so, it is quite clear, I think, that no right or lien founded on the general arrangement or agreement between H. Yiets and tke defendants, by which the defendants were to advance moneys for corn to be bought, and of which bills of lading were to be sent to them, and the mere payment of the $1220 draft, or other moneys, under such arrangement or agreement, could prevail against the plaintiff's special or spécific rights as the bona fide transferee of the bill of lading. (See cases before cited.)

I think the evidence warranted this finding of fact by the referee. The cashier of the plaintiff swore expressly that the bill of lading was delivered to the plaintiff when the draft was discounted; that the draft was discounted on the security of such transfer, and would not have beep discounted without it. That this was the fact, I think, is also the inference- not only from the deposition of W. A. Yiets, but also from evidence given at the trial, though he attempted to get up a legal quibble about hypothecation, in both.

I think the judgment should be affirmed, with costs.

Judgment affirmed.

Geo. £?, Barnard, Ingraham and Sutherland, Justices.]